The Fourth Circuit just issued this published opinion denying habeas relief on military death row inmate Timothy Hennis’s case.  The court ruled that the distict court correctly applyed Councilman absention to dismiss Hennis’s habeas petition without prejudice.  See Schlesinger v. Councilman, 420 U.S. 738 (1975).  Former Navy military judge, and now Circuit Judge, Wynn wrote for a unanimous panel that also included Judges King and Gregory.

Judge Wynn’s opinion notes the general rule that a court-martial doesn’t have jurisdiction “to try an enlisted man for an offense committed in a prior enlistment from which he has an honorable discharge, regardless of the fact that he has subsequently reenlisted in [a military] service and was serving under such reenlistment at the time the jurisdiction of the court was asserted.”  Hirshberg v. Cooke, 336 U.S. 210 (1949).  The opinion also notes the Clardy Exception, which provides that “where a servicemember is discharged prior to the expiration of his [ETS] for the specific purpose of immediate reenlistment, . . . he can be tried for offenses committed in the earlier enlistment.”  United States v. Clardy, 13 M.J. 308, 310 (C.M.A. 1982).  And the opinion observed that “there was (and remains) an open factual dispute between the parties regarding the date on which Hennis’s previous term of enlistment was to end,” which could have the effect of placing the offenses within or outside the Clardy Exception.

The Fourth Circuit upheld the district court’s decision not to reach the merits of the Clardy Exception’s applicability due to the Councilman absention principles.  420 U.S. 738.

The Fourth Circuit emphasized that unless the Supremes resolves the matter upon a cert petition seeking review of CAAF’s decision in the case, Hennis will be able to seek habeas relief on his jurisdictional claim following the completion of direct appeal within the military justice system.

Finally, the Fourth Circuit remanded the case to the United States District Court for the Eastern District of North Carolina for correction of erroneous language in the district court’s judgment.  (The error was that the judgment purported to grant the respondents’ summary judgment motion on the merits when the judge’s decision dismissed the habeas petition without prejudice and without reaching its merits.)

The United States Court of Appeals for the Fourth Circuit will hear oral argument on military death row inmate Retired Master Sergeant Timothy Hennis’s appeal of his habeas denial on 26 October.  Hennis v. Hemlick, No. 10-6400.

We’ve previously noted that the Fourth Circuit plans to hear oral argument in an appeal of the denial of habeas relief on jurisdictional grounds arising from the Army capital case of United States v. Hennis.  The oral argument had previously been expected to occur during the last week of September.  Yesterday, the Fourth Circuit moved the likely oral argument date in Hennis v. Hemlick, No. 10-6400, to the 25-28 October 2011 argument window.

The Fourth Circuit today issued this order in the habeas case of Hennis v. Hemlick, No. 10-6400.  The appeal challenges the military’s jurisdiction to court-martial military death row’s newest resident, retired Master Sergeant Timothy Hennis.  The argument is tentative,ly calendared for argument during the 20 September – 23 September argument session.  Maybe I’ll be taking a field trip to Richmond in September.

h/t NIMJ blog

An alert reader called our attention to the fact that military death row inmate Timothy Hennis’s counsel filed his reply brief in Hennis’s appeal of denial of habeas relief.  The case is pending before the 4th Circuit.  We’ve posted the reply brief here.

We’ve previously noted that military death row inmate Ronald Gray’s counsel have asked the U.S. District Court for the District of Kansas to put his habeas case on hold while his counsel litigate a petition for writ of error coram nobis at ACCA.  On Monday, Gray’s counsel filed this reply to the Respondent’s opposition to the defense motion to put the federal habeas proceedings on hold while awaiting ACCA’s ruling.

A lot happened while I was gone, including the filing of this defense motion to stay federal habeas proceedings in Gray v. Belcher, No. 02-CR-116, pending ACCA’s resolution of Gray’s recently filed petition for writ of error coram nobis, available in two parts here and here.  And here’s a link to the Respondent’s opposition to the motion to stay proceedings.

This evening the Appellees — essentially the United States Army — filed their brief in Hennis v. Hemlick, an appeal of the denial of habeas relief in the capital court-martial of United States v. Hennis.  The appeal is pending in the Fourth Circuit.  We’ve posted the Appellees’ brief here.  The filing of that brief comes two days before a post-trial Article 39(a) is scheduled in the court-martial case at the USDB.

Here’s a link to the brief filed on behalf of military death row inmate Timothy Hennis challenging the United States District Court for the Eastern District of North Carolina’s denial of habeas relief.

An alert reader sent us this link to a Fayetteville Observer article about the appeal filed on behalf on military death row inmate Timothy Hennis.  I’ll upload the actual brief later today.

The federal defendants today filed this opposition to a motion by military death row inmate Ronald Gray’s counsel for a 90-day extension of time to file their reply to the federal defendants’ response to their traverse.

I’ve now had a chance to read the petition for extraordinary relief in Templar v. Federal Bureau of Prisons, __ M.J. __, No. 11-8010/NA (C.A.A.F. Nov. 17, 2010), which we discussed here.  The petition didn’t argue that the thou-shalt-not-seek-clemency-or-parole portion of the PTA was invalid under Tate.  It was a pro se petition that failed to develop a plausible — or even coherent, really — case for relief.

The first thing notable about CAAF’s ruling in Templar v. Federal Bureau of Prisons, __ M.J. __, No. 11-8010/NA (C.A.A.F. Nov. 17, 2010), is that former Marine Sergeant Joseph Thomas has changed his name to Solomon Templar.  The second thing is that CAAF denied his habeas petition.

Thomas had been sentenced to death for killing his wife, but CAAF reversed his death sentence because the military judge provided the members with erroneous instructions concerning the sentence voting procedures.  United States v. Thomas, 46 M.J. 311 (C.A.A.F. 1997).  Thomas subsequently pleaded guilty under a PTA that required him to waive applying for clemency or parole.  NMCCA upheld that PTA term, while setting aside a PTA term that said Thomas wouldn’t accept clemency if granted by SECNAV.  United States v. Thomas, 60 M.J. 521 (N-M. Ct. Crim. App. 2004).  Thomas didn’t appeal that ruling to CAAF.  But in a later case, CAAF disagreed with NMCCA’s Thomas opinion and held that a PTA provision waiving the right to request clemency or parole violates R.C.M. 705(c)(1)(B).  United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007).  I don’t know whether “Templar’s” petition for extraordinary relief was an attempt to apply Tate to his case, since CAAF”s denial of the petition doesn’t explain either the nature of the habeas petition or CAAF’s rationale for rejecting it.  Do any of our readers know?

In March, the United States District Court for the Eastern District of North Carolina issued this ruling denying Master Sergeant Timothy Hennis (Ret.)’s habeas petition seeking to stop his capital court-martial on double jeopardy grounds.  As the court-martial case was being litigated, Hennis’s counsel sought injunctive relief from the Fourth Circuit, which was denied in this order.  Hennis was then convicted and sentenced to death.  But the 4th Circuit litigation lives on. 

On Friday, the 4th Circuit issued this order granting Hennis’s counsel’s third request for an extension of time to file an opening brief in support of Hennis’s appeal of the Eastern District’s denial of habeas relief.  The brief is now due on 17 December.  The order notes that “[a]ny further request for extension shall be disfavored.”

Here’s a link to the United States’ response to the petitioner’s traverse in the capital habeas case of Gray v. Gray.